Lessons from `Pogo' for the Bork debacle

ByGodfrey Sperling Jr.October 13, 1987

WALT KELLY'S ``Pogo'' cartoon correctly identified the problem when he said the enemy ``is us.'' He could have been talking about Judge Robert Bork and his cause. Something within Judge Bork kept him from providing sufficient assurances - at least, to his critics - that he, indeed, did care. The Washington Post, which was quite obviously anguishing in its effort to find a way to come out against the judge's confirmation, put it this way:

``What people like ourselves needed ... was a simple assurance that, in addition to the forensic brilliance, the personal integrity and the care for the law, Robert Bork's sensibility could be engaged with the question on which he had pronounced so forcefully, that in these great cases that were to have so profound and intimate an effect on people's lives, he had a feeling for justice, not just for the law ... He does not read the Constitution generously.''

The judge evidently felt that his decisions attested to his feeling for the downtrodden and for individual rights and liberties. For some it was not enough. And for others - probably most of those among the special interests who opposed him - he could never have said enough to calm their fears and stop their opposition.

But Mr. Bork's ``us'' problem extended to what would be called his natural constituency: the conservatives. They never got worked up to fighting pitch the way the anti-Bork forces did. Why? The very changes that Bork indicated had taken place in his thinking - after he went on the bench - tended to alienate conservatives. So we had here a nominee who wasn't able to soften his position enough to satisfy the liberals - but who was at the same time antagonizing his own people in that changing process.

One frequent media commentary on Bork's travail was that in unveiling his moderated views he never was able to rally the moderates to his side. The political reality is that those in the political middle usually don't get that aroused over causes. Liberals and conservatives mount impassioned campaigns to win battles or to beat down the opposition. Moderates stay pretty quiet.

As Bork was ending his testimony on the Hill, I attended a reception where I was talking to a number of conservative businesspeople. The subject was Bork. I found no real enthusiasm for him. In effect they were saying: ``There are a lot of good, conservative judges Ronald Reagan could have nominated - and gotten them confirmed. Why didn't he do that?''

In that same group I also heard some unbelievably trivial criticisms of Bork. Some people didn't like his beard. Some just said they had difficulty liking him personally.

I listened to a radio talk show one morning and found much of this same triviality. But there were others who were seriously concerned about Bork's being an ``agnostic'' - even though he had denied this was true.

So the attack on Bork had won the stage - legitimate to the extent that it attempted to portray the man and his thinking accurately. But, as his journalist son, Robert H. Bork Jr., points out in the Washington Post, there were those who have sought to make Bork out to be unpleasant and uncaring - a ``caricature.'' Asserting, ``I know a different picture,'' young Bork cited these examples:

``He never harbored any biases or prejudices. Our home was always open to our friends no matter who they were or where they came from.

``He, as a junior associate, fought for and won a place at his Chicago law firm for a lawyer whom the senior partners didn't want to hire because he was Jewish.

``He came to the aid of a black female lawyer in the Justice Department who charged that she was being excluded from meetings by her white male colleagues.''

But the relative apathy of the conservatives, much more than the successful attack by the liberals, was Bork's principal problem. Even the President and his people were late in putting an all-out effort behind the confirmation.

The President could not be as effective in pushing through this nomination as he would have before he entered his lame-duck period. But Mr. Reagan's appeals to the public in behalf of Bork helped the beleaguered court appointee.

However, the conservatives aren't heeding Reagan the way they once did. They are bothered by his eagerness to go to a summit and to agree to a nuclear-arms reduction pact with the Soviets. They are worried about verification. And they are concerned that the Soviets will come out of such a treaty with the nuclear edge as well as a conventional arms advantage in Europe.

The conservatives have, over the years, been Reagan's hard-core supporters. They still like him. But they no longer leap to his side when he utters the battle cry - not automatically, anyway.

So Bork's enemy has in great part been his inability - or reluctance - to state his case in a way that would have satisfied his liberal critics.

Columnist David Broder calls what has happened to Judge Bork ``judge bashing.'' He writes: ``The game of judge bashing, which they [the liberals] learned from their opponents on the political right, ultimately profits no one. It inevitably damages and could destroy one of the major safeguards of freedom in this society: the independence of the judiciary.''